PSH-13-0105

*The original of this document contains information which is subject to withholding from
disclosure under 5 U.S. C. § 552. Such material has been deleted from this copy and
replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of Personnel Security Hearing )
)
Filing Date: September 10, 2013 ) Case No.: PSH-13-0105
)
____________________________________)
Issued: January 10, 2014
______________________
Hearing Officer Decision
______________________
Richard A. Cronin, Jr., Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXX (hereinafter referred to as “the
Individual”) to hold an access authorization under the regulations set forth at 10 C.F.R. Part 710,
entitled “Criteria and Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material.”1 For the reasons set forth below, I conclude that the DOE should not
restore the Individual’s access authorization.
I. BACKGROUND
The Individual is a contractor employee at a Department of Energy (DOE) facility and obtained a
security clearance in 1984. Exhibit (Ex.) 14 at 3, 8. In August 2012, the Individual reported to his
employer that he was seeking treatment at a facility (2012 Treatment Facility) for prescription
opioid dependence.2 Ex. 4 at 4. The DOE facility’s Local Security Office (LSO) subsequently
conducted a personnel security interview (PSI) with the Individual in May 2013 (May 2013 PSI).
Ex. 4. In July 2013, the LSO suspended the Individual’s security clearance. Ex. 2. In August
2013, the Individual received a detailed notification letter (Notification Letter) from the DOE
facility’s Manager outlining the specific derogatory information, described under 10 C.F.R.
1 An access authorization is an administrative determination that an individual is eligible for access to classified
matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will be referred to in this Decision as
access authorization or a security clearance.
2 An opioid is morphine-like medication. In this Decision, we will use the word “narcotic” synonymously with the
term opioid.
- 2 -
§ 710.8 (f) and (k) (Criterion F and K, respectively), which he relied upon in making the decision
to suspend the Individual’s security clearance. Ex. 3.
The Notification Letter also informed the Individual that he was entitled to a hearing before a
Hearing Officer to present evidence to resolve these doubts. Ex. 1. The Individual requested a
hearing in this matter. The LSO forwarded this request to OHA and the OHA Director appointed
me as the Hearing Officer. The DOE introduced 19 exhibits (Exs. 1-19) into the record of this
proceeding. The Individual introduced nine exhibits (Exs. A-I) and presented the testimony of
seven witnesses in addition to his own testimony.
II. FACTUAL FINDINGS AND THE
ASSOCIATED SECURITY CONCERNS
The Part 710 regulations require that I “make specific findings based upon the record as to the
validity of each of the allegations” in the Notification Letter. 10 C.F.R. § 710.27(c). In this case, the
Notification Letter cites Criteria F and K of the criteria for eligibility for access to classified matter or
special nuclear material set forth at 10 C.F.R. § 710.8. Ex. 1.3 The Individual does not dispute the
factual accuracy of the Criteria F and K derogatory information described in the Notification
Letter and I set forth my factual findings below.
A. Criterion F
In November 1987, the Individual underwent a PSI (November 1987 PSI) in response to the
discovery of marijuana in a vehicle belonging to his then-employer in October 1987. Ex. 19.
During this PSI, the Individual stated that he had no knowledge regarding the marijuana. Ex. 19
at 2. He also stated that he had never used any illegal drug. Ex. 19 at 9. The Individual
subsequently denied using illegal drugs during the prior five years in two Questionnaire for
Sensitive Position forms (QSPs) he submitted in October 1988 (October 1988 QSP) and April
1994 (April 1994 QSP). Ex. 18 at 7; Ex. 16 at 8. In two QNSPs, submitted in August 2003 and
February 2004 (August 2003 QNSP and February 2004 QNSP, respectively), the Individual
denied ever having used illegal drugs while possessing a DOE security clearance (Question No.
24(b)).4 Ex. 15 at 8; Ex. 14 at 8.
3 Criterion F describes derogatory information suggesting that an individual may have “[d]eliberately
misrepresented, falsified, or omitted significant information from a Personnel Security Questionnaire, a
Questionnaire for Sensitive (or National Security) Positions, a personnel qualifications statement, a personnel
security interview, written or oral statements made in response to official inquiry on a matter that is relevant to a
determination regarding eligibility for DOE access authorization. . . . “ Criterion K refers to information indicating
that an individual has “[t]rafficked in, sold, transferred, possessed, used, or experimented with a drug or other
substance listed in the Schedule of Controlled Substances established pursuant to section 202 of the Controlled
Substances Act of 1970 (such as marijuana, cocaine, amphetamines, barbiturates, narcotics, etc.) except as
prescribed or administered by a physician licensed to dispense drugs in the practice of medicine, or as otherwise
authorized by Federal law.” 10 C.F.R. § 710.8(k).
4 Question No. 24(b) on both QNSPs asks: “[h]ave you illegally used a controlled substance while employed as a
law enforcement officer, prosecutor, or courtroom official; while possessing a security clearance; or while in a
position directly and immediately affecting the public safety?”
- 3 -
In 2006, the Individual reported to the LSO that he had sought treatment at two facilities for
prescription narcotics and alcohol dependence.5 The LSO reviewed medical records from the
Individual’s 2006 Treatment Facilities. Ex. 9; Ex. 10. These records indicated that the Individual
reported to the 2006 Treatment Facilities that he first used methamphetamine at the age of 27 or
28 and that he snorted methamphetamine for five or six months and then stopped using the drug.
Ex. 9 at 2-3.
The LSO conducted another PSI with the Individual in November 2006 (November 2006 PSI).
Ex. 8. During this interview, the Individual admitted that he had first used marijuana as a
teenager and that he smoked it “on and off” approximately once every two months. Ex. 8 at 19.
The Individual also admitted that, during the period 1983 to October 1989 - while holding a
security clearance - he had used marijuana. Ex. 8 at 20-21. During the 1985-1986 period, the
Individual had used “crank” (methamphetamine) a “couple of times” a month for three or four
months. Ex. 8 at 22-24. When asked why he had lied about using illegal drugs during the
November 1987 PSI, the Individual stated that he was “intimidated” and afraid of getting into
trouble. Ex. 8 at 43-44. The November 2006 PSI admissions were contradictory with the
responses the Individual gave regarding his illegal drug use in the October 1988 and April 1994
QSPs, and August 2003 QNSP and February 2004 QNSP. During the interview, the Individual,
when again asked about the marijuana found in a company vehicle in 1987 reported that the
marijuana belonged to his supervisor. Ex. 8 at 55. This answer differed from the response he had
provided in the November 1987 PSI regarding the incident.
During the May 2013 PSI, the Individual admitted that when he was 18 or 19 years old he had
snorted cocaine once or twice and had used methamphetamines during that period. Ex. 4 at 50-
52. The Individual also admitted to using hashish once or twice while a teenager. Ex. 4 at 50-51.
This response was at odds with the November 1987 PSI and the QSPs and QNSPs detailed
above. However, on admission to the 2012 Treatment Facility, the Individual denied that he had
used cocaine when asked at the 2012 Treatment Facility. Ex. 3 at 5; Ex. 4 at 50-52.
Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply
with rules and regulations can raise questions about an individual's reliability, trustworthiness and
ability to protect classified information. See Revised Adjudicative Guidelines for Determining
Eligibility for Access to Classified Information issued by the Assistant to the President for
National Security Affairs, The White House (December 29, 2005) (Adjudicative Guidelines),
Guideline E. As indicated above, the Individual provided false answers to the LSO during the
November 1987 PSI, the October 1998 and April 1994 QSPs, and the August 2003 and February
2004 QNSPs. Consequently, I find that the LSO had ample grounds to invoke Criterion F.
B. Criterion K
In August 2006, the LSO obtained medical records from the 2006 Treatment Facilities. These
records indicated that the Individual sought treatment for alcohol and prescription opioid
5 During 2006, the Individual was forced to leave his initial treatment facility early when his insurance carrier
determined that it would not cover him for the entire recommended period of treatment. Upon discharge from the
first treatment facility, the Individual sought to complete his treatment at another treatment facility. These treatment
facilities are hereinafter referred to collectively as the “2006 Treatment Facilities.”
- 4 -
dependence. Ex. 9 at 4; Ex. 11 at 1. During the November 2006 PSI, the Individual admitted to
prior marijuana and methamphetamine use. The Individual also stated that he sought treatment
because of his excessive use of prescription opioids and alcohol. Ex. 8 at 4. The Individual
recounted that, in 2002, he had injured his back and a physician prescribed hydrocodone tablets
for pain. Ex. 8 at 25-26. His physician initially prescribed 30 hydrocodone tablets per month that
the Individual could take on an “as needed” basis. The physician subsequently increased the
prescription to 60 tablets a month. Ex. 8 at 26. The Individual began to take the tablets on a daily
basis. The Individual reported that, six months prior to entering the 2006 Treatment Facilities, he
was abusing hydrocodone and eventually started to consume up to 120 hydrocodone tablets per
month. Ex. 8 at 28. He would obtain additional hydrocodone tablets by reporting that his original
prescription had been lost, stolen, or damaged. Ex. 8 at 28. During the subsequent November
2006 PSI, the Individual stated his intention never to use prescription narcotics again.
In June 2011, the Individual was referred by an orthopedic physician to a pain management
physician (Pain Management Physician). Ex. I. By October 2011, the Pain Management
Physician noticed that the Individual was requesting an excessive amount of narcotic medication
for his diagnosed shoulder and back conditions. Ex. I at 2. The Pain Management Physician
performed a drug test on the Individual in January 2012 that was positive for morphine, a
prescription narcotic medication not prescribed to the Individual. Ex. I at 3. A subsequent June
2012 drug test indicated that the Individual had used marijuana and morphine. At their
discussion of the drug screen results, the Individual denied to the Pain Management Physician
that he had used marijuana or morphine. Ex. I at 4. The Pain Management Physician informed
the Individual that he was no longer willing to treat the Individual unless the Individual entered
into a drug treatment program. Ex. I at 4.
In August 2012, the Individual sought inpatient treatment for his prescription narcotic problem at
the 2012 Treatment Facility. Ex. 6. At the time of his admission, the Individual was taking 10 to
12 tablets of hydrocodone a day and would “snort” hydrocodone tablets while at work. Ex. 4 at
7-8. According to the 2012 Treatment Facility records, when the Individual ran out of
hydrocodone, he would ask others for medication by claiming that his back was painful. These
records also noted that the Individual completed the 28-day of inpatient treatment program. Ex. 6
at 2.
During the May 2013 PSI, the Individual stated that, three or four years prior, he had again
started to abuse prescription narcotic medication. Ex. 4 at 4. The Individual began to take twice
the recommended prescribed dosage of hydrocodone and would obtain additional hydrocodone
tablets by going to multiple pharmacies. Ex. 4 at 30. The Individual also stated during the
interview that he had smoked marijuana while on a recent camping trip. During the trip, another
camper offered him a pipe containing marijuana and he smoked from the pipe. Ex. 4 at 13, 16.
After the trip, the Individual ingested a tablet that he thought was hydrocodone but instead turned
out to be morphine. Ex. 4 at 13. The Individual admitted, during the PSI, that he denied the
validity of the Pain Management Physician’s test results because admitting to such use would be
embarrassing because his wife and a nurse were present. Ex. 4 at 18. The Individual stated at the
PSI that when he was 18 or 19 years old he had snorted cocaine once or twice and had used
methamphetamines during this time. Ex. 4 at 52. The Individual also admitted to using hashish
during teenage years. Ex. 4 at 51.
- 5 -
Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's
reliability and trustworthiness, both because it may impair judgment. See Revised Adjudicative
Guidelines for Determining Eligibility for Access to Classified Information issued by the
Assistant to the President for National Security Affairs, The White House (December 29, 2005)
(Adjudicative Guidelines), Guideline H. Given the Individual’s own admission regarding his
misuse of prescription narcotic drugs and his treatment for prescription narcotic dependence, the
LSO had abundant grounds to invoke Criterion K.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictates that in these proceedings, a Hearing Officer must undertake a careful review of all of the
relevant facts and circumstances, and make a “common-sense judgment . . . after consideration
of all relevant information.” 10 C.F.R. § 710.7(a). I must therefore consider all information,
favorable and unfavorable, that has a bearing on the question of whether granting the Individual
a security clearance would compromise national security concerns. Specifically, the regulations
compel me to consider the nature, extent, and seriousness of the Individual’s conduct; the
circumstances surrounding the conduct; the frequency and recency of the conduct; the age and
maturity of the Individual at the time of the conduct; the absence or presence of rehabilitation or
reformation and other pertinent behavioral changes; the likelihood of continuation or recurrence
of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c). In considering
these factors, the Hearing Officer also consults the Adjudicative Guidelines that set forth a more
comprehensive listing of relevant factors.
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the Individual to produce evidence sufficient to convince the
DOE that granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). The
regulations further instruct me to resolve any doubts concerning the Individual’s eligibility for
access authorization in favor of the national security. 10 C.F.R. § 710.7(a).
IV. ANALYSIS
A. Criterion K
The Individual asserts that he is rehabilitated from his prescription narcotic dependence. With his
rehabilitation, the Individual argues that all of the Criterion K concerns are now resolved.6
6 Because some of the Individual’s arguments regarding his mitigation of the Criterion F concerns depend on his
alleged rehabilitation from his prescription drug dependence problem, we will consider the Criterion K concerns
first.
- 6 -
The Individual’s spouse (Spouse) of 36 years testified as to her belief that her husband had an
addiction problem and that he sought treatment at the 2012 Treatment Facility in July 2012. Tr. at 14.
At that time, she believed that the Individual was under the “control” of the prescription drugs. Tr. at
15. The Spouse testified that the Individual attended the treatment program for four weeks and that
she intermittently participated in various activities at the facility. Tr. at 16. After his stay at the 2012
Treatment Facility, the Individual changed – he became more communicative with her and asked for
forgiveness for his actions and the pain they had caused her. Tr. at 16. The Individual is open about
his addiction and answered all of her questions about his addiction. Tr. at 17. The Spouse and the
Individual have now made it a point to talk to ensure that he can express anything that is bothering
him. Tr. at 17. The Spouse believes that the Individual has done everything he can do to ensure that
he is completely honest, truthful and transparent. Tr. at 23.
The Spouse also testified that the Individual initially used prescription narcotics to treat the chronic
stenosis in his neck and back along with his migraine headaches. Tr. at 18. The Individual now uses
daily stretching exercises to reduce his pain and rests when he feels pain. Tr. at 18. After returning
from the 2012 Treatment Facility, the Individual decided to visit the Pain Management Physician and
ask him if he would treat the Individual without the use of narcotics. The Pain Management
Physician has placed the Individual on a new non-narcotic prescription medication for his pain. Tr. at
18-19. The Individual also uses two non-narcotic over-the-counter medications for pain. Tr. 18-19.
Since the Individual’s return from the 2012 Treatment Facility, the Individual has been participating
in a church-based 12-step program similar to Alcoholics Anonymous. Tr. at 19, 23. As a result, the
Individual developed a relationship with a “higher-power” and has grown spiritually. Tr. at 19. The
Spouse and the Individual now both pray together. Additionally, the Individual now reaches out to
others for help and has grown tremendously in in his relationships. If necessary, the Individual will
make amends to others that he has hurt in the past. Tr. at 19.
The Individual testified that after his treatment in 2006, he developed an abscessed tooth and the
treating dentist prescribed medication consisting of a prescription medication combining codeine and
acetaminophen (Tylenol #3). Tr. at 180. The Individual’s misuse of prescription narcotic medication
began again after that treatment. Tr. at 180. Nonetheless, the Individual has not consumed alcohol
after his 2006 treatment program. Tr. at 185. The Individual’s last use of alcohol occurred in May
2006. Tr. at 185.
The Individual believes that his first attempt at treatment in 2006 was not fully effective because he
was required to change treatment facilities only after 16 days of treatment and only saw a counselor
three times. Tr. at 179. As a result, he did not believe he received the full effect of treatment.
Additionally, unlike the treatment facilities he attended in 2006, the 2012 Treatment Facility dealt
with the personal issues in his life. Tr. at 179. Part of his treatment with the Pain Management
Physician consists of drug testing. Tr. at 79. The Individual’s Pain Management Physician confirmed
the Individual’s testimony and testified that since returning to treatment in 2012, the Individual has
passed three drug tests. Further, the Pain Management Physician’s examination of the State Board of
Pharmacy records indicates that the Individual has not received any prescriptions for prescription
narcotic medication since entering treatment in 2012. Tr. at 79.
The Individual asserted that, during his treatment in July 2012 for prescription narcotic addiction, he
examined the past events in his life in order to deal with his unresolved issues. Tr. at 175. After
completing the treatment program, the Individual began to participate in his church’s 12-step
- 7 -
program. Tr. at 175. Before he entered the 2012 Treatment Facility, the Individual believes that he
was taking so many prescription narcotics that he did not really “know who he was.” Tr. at 176. If
something went wrong in his life, his answer was to take another pill to feel better about it. Tr. at
176. After completing the treatment program, he now knows how to deal with life’s issues without
taking a pill. Tr. at 176.
The Individual’s 12-step sponsor (Sponsor) and, until recently a church official, testified that he
speaks with the Individual approximately twice a week. Tr. at 52. Before the Individual went to the
treatment facility in 2012, the Sponsor liked the Individual but believed that the Individual was
secretive. Tr. at 55. However, the Individual is no longer secretive and is extremely open. The
Sponsor has been inspired by the Individual’s willingness to ask others for help when he needs it and
by how much the Individual has opened up his life to others. Tr. at 55-56. The Sponsor also believes
that the Individual’s relationship with his wife is much better since his treatment in 2012. Tr. at 67.
The Individual’s counselor from the 2012 Treatment Facility (Counselor) testified as to the
Individual’s treatment for prescription drug dependence. Tr. at 103-08. The Counselor testified
that the Individual’s relapse into prescription narcotic dependence after his treatment in the 2006
Treatment Facilities was triggered by a prescription for narcotics the Individual received for a
dental problem. Tr. at 112. The Individual entered into the residential treatment program and
completed the 28-day program. Tr. at 103-09; see Exs. A-C. Because the Individual’s addiction
was related to his chronic pain, the 2012 Treatment Facility had the Individual examined by a
physician who discovered several cysts in the Individual’s back. The physician removed the
cysts and the Individual’s chronic pain level significantly decreased. Tr. at 113. During the
recovery from this procedure, the Individual used only non-narcotic over-the-counter pain
medicines. Tr. at 113.
The treatment program consisted of daily individual and cognitive behavioral group therapy
along with other forms of therapy. Tr. at 105-06. During their counseling sessions, the Counselor
determined that the Individual’s traumatic childhood played a role in the development of his
addiction and that the therapy sessions helped the Individual to process these traumas.
Consequently, the Individual is able to connect with a spiritual sense of purpose and meaning for
his life. Tr. at 111. As the Individual resolves his “unfinished business” and becomes whole, he
no longer needs to self medicate in order to deal with his problems. Tr. at 111. The 2012
Treatment Facility counselors also worked with the Individual in developing assertive
communication to help with his relationship with his wife. Tr. at 125. Overall, the Individual
changed during his treatment from an anxious person with a flat affect to one who was motivated
and ready to “get back to life.” Tr. at 115-16.
The Counselor opined that the Individual had a low probability of relapse. Tr. at 128. The
Individual’s environment at home and at work is a substance-free area and the Individual has
social support. Tr. at 128. The Counselor testified that the Individual’s involvement with a 12-
step recovery group at his church and his willingness to participate in urinalysis testing programs
were also facts supporting her conclusion as to his risk of relapse. Tr. at 128. In making this
assessment, the Counselor considered the Individual’s prior relapse after the 2006 treatment
program. In this regard, she found it a positive factor that the Individual was able to remain sober
from alcohol despite his relapse in using prescription narcotics. Tr. at 129.
- 8 -
The facility’s Employee Assistance Counselor (EAP Counselor) testified that in 2006 he worked
with the Individual after his return from the 2006 Treatment Facilities. Tr. at 93. At that time, the
EAP Counselor testified that he monitored the Individual pursuant to a two-year agreement that
permitted the facility to take random drug and alcohol tests to monitor the Individual’s
compliance with his follow-up treatment plan. Tr. at 93. During this period, from July 2006
through August 2008, the tests were negative for alcohol or illegal drug use. Tr. at 95. After the
expiration of the agreement, the EAP Counselor did not have any further contact with the
Individual. Tr. at 98.
In August 2012, the Individual informed the EAP Counselor he had relapsed with regard to
prescription narcotics and had recently returned from completing a treatment program. The
Individual asked the EAP Counselor for assistance. Tr. at 95-96. The EAP Counselor and the
Individual began to meet on a regular weekly basis. Tr. at 96. During these sessions, they review
the Individual’s week and how his program is working. Tr. at 96. As for the treatment programs
the Individual attended in 2006 and 2012, the EAP Counselor opined that the Individual’s
treatment in 2006 was not a “full-fledged treatment” because of the insurance problem and
subsequent requirement that he be transferred to another program covered by his insurance. Tr. at
98. Further, the EAP Counselor testified that Individual responded significantly more favorably
to the treatment approach used by the 2012 Treatment Facility than the approaches used in the
2006 Treatment Facilities. Tr. at 98. Because of the 2012 Treatment Facility’s program, the EAP
Counselor noted a marked improvement in the Individual’s ability to identify the triggers that
prompted him to use prescription medications. The Individual is now able to identify other
solutions for his issues. Tr. at 98.
The EAP Counselor believes that the Individual as of the date of the hearing, has a low
probability of relapse. Tr. at 159. The factors that support this assessment are: the Individual has
begun to address his childhood trauma: the Individual’s history of good work performance; the
Individual’s excellent support system; and the work that the Individual has done with the EAP
Counselor in identifying triggers for his prior misuse of prescription narcotics. Tr. at 159.
After reviewing the evidence, I find that the Individual has mitigated the concerns raised by the
Criterion K information alleged in the Notification Letter. In additions to the factors listed in
section 710.7(c), the Adjudicative Guidelines, among other potentially mitigating factors, list the
following mitigating factors:
(c) abuse of prescription drugs was after a severe or prolonged illness during
which these drugs were prescribed, and abuse has since ended;
(d) satisfactory completion of a prescribed drug treatment program, including but
not limited to rehabilitation and aftercare requirements, without recurrence of
abuse, and a favorable prognosis by a duly qualified medical professional.
Adjudicative Guidelines, Guideline H ¶ 26 (c), (d).
The Counselor and the EAP Counselor have provided persuasive evidence regarding the state of
the Individual’s rehabilitation from his prescription narcotic dependence and their opinion that
- 9 -
there is a low probability of the Individual resuming the improper use of prescription narcotics.
The Individual has successfully completed the 2012 treatment program and has provided
testimonial and documentary evidence confirming that he has not used prescription narcotics
since completing the program in the middle of 2012. Further, there are important differences
from his partially unsuccessful treatment program in 2006. The Individual first attempt at
treatment in 2006 was interrupted mid-way because of health insurance problems and I conclude
that, even though he transferred to another treatment facility to finish a complete treatment
program, the quality of that program could not equal his 2012 treatment program. Further, the
2012 Treatment Facility’s program, as evidenced by the testimony of the Counselor and the EAP
Counselor, made a deeper impression with the Individual. The Individual has also presented
convincing evidence from his Sponsor, Spouse, and the Pain Management Physician regarding
the quality of his support system and the length of his abstinence from prescription narcotic
medication. I also find that the Individual’s use of prescription narcotics resulted from a
prolonged and chronic back disorder beginning in 2001 in which prescription narcotics were
prescribed and that his abuse of these drugs has ended. See Ex. 9 at 1. Thus, I find that the
mitigating factors listed in the Adjudicative Guidelines, ¶ 26 (c) and (d) are applicable in this case.
Considering all of the evidence presented before me, I find that the Individual has successfully
resolved the Criterion K concerns raised by the Notification Letter
B. Criterion F
The Individual believes that the Criterion F concerns raised by his failure to report accurately his
prior drug use history resulted, in part, from his prescription opioid dependence. Further, the
Individual argues that, given his successful rehabilitation from that disorder and the length of time
that has elapsed since the majority of the misrepresentations, the Criterion F concerns have been
resolved.
In his testimony the Individual stated that he believes that, in part, he provided some of his false
answers out of fear that he was going to “get into trouble.” Tr. at 188. He also believes that some of
his false answers noted in the Notification Letter were a product of his prescription narcotic
dependence. Tr. at 188. As to the incorrect answers he gave in the August 2003 and February 2004
QNSPs, the Individual testified that he found the wording of the question at issue confusing since he
believed the question asked if he had used marijuana while a law enforcement officer, prosecutor or
courtroom official, while in a position directly and immediately affecting the public safety, and held
a security clearance. Tr. at 187.
The Counselor and the EAP Counselor testified that the failure of the Individual to report accurately
the extent of his illegal drug use was a product of his addiction to prescription narcotics. Tr. at 142,
167. The EAP Counselor explained that lying is a major symptom of practicing addicts. This failure
to relate the truth is related to the fact that addicts generally have poor memories and that the effect
of the ingested drugs causes changes in the medullary system of the brain which causes them to fail
to process information properly. Tr. at 149. However, once a person is in recovery, the person
becomes less likely to lie because of their better insight into themselves. Tr. at 143. Overall, people
that have been through treatment for substance misuse are less likely to lie than the general
population. Tr. at 143-44. The EAP Counselor opined that the Individual’s traumatic childhood
experiences could also create in a person a tendency to lie. Tr. at 166. This tendency can be reversed
- 10 -
if a person explores their inaccurate core beliefs in therapy and makes the realization that there are
better ways of interpreting life events and dealing with issues. Tr. at 168.
It is beyond dispute that the Individual has failed to provide accurate answers regarding a number of
inquiries regarding his past illegal use of drugs on multiple occasions over a 26-year period regarding
his past illegal drug use. In this respect, the Individual failed to provide accurate information in the
1987 PSI, the October 1998 and April 1994 QSPs, and the August 2003 and February 2004 QNSPs.
Further, the Individual failed to reveal that he had used hashish or cocaine until the May 2013 PSI.
Under OHA precedent, relevant factors to consider in making a determination regarding
falsification include whether the individual came forward voluntarily to admit the falsifications,
the length of time since the falsification, how long the falsehood was maintained, whether a
pattern of falsification is evident, and the length of time since the individual revealed or
corrected the falsification. See, e.g., Personnel Security Hearing, Case No. TSO-1105 (2011).
The Adjudicative Guidelines also suggest a number of mitigating factors than might resolve concerns
associated with falsification. The two factors with the most relevance in the present case are:
(c) the offense is so minor, or so much time has passed, or the behavior is so
infrequent, or it happened under such unique circumstances that it is unlikely to
recur and does not cast doubt on the individual's reliability, trustworthiness, or
good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to
change the behavior or taken other positive steps to alleviate the stressors,
circumstances, or factors that caused untrustworthy, unreliable, or other
inappropriate behavior, and such behavior is unlikely to recur;
Adjudicative Guidelines, Guideline E ¶ 17 (c), (d).
I do not find that the Individual’s misrepresentations in the November 1987 PSI and the October
1988 April 1994 QSPs were a product of the Individual’s substance abuse problems. There is
insufficient evidence for me to conclude that the Individual was suffering from substance
dependence during the period that he made those misrepresentations. As for his falsification in
the November 1987 PSI where he denied hashish use, I find that this likely was a deliberate
falsification and that the Individual did not reveal his prior use of hashish until the May 2013
PSI.
With regard to the Individual’s apparent falsification in his response denying his use of cocaine
to the 2012 Treatment Facility, I find that this may represent an honest failure to remember given
that his cocaine use occurred some 30 years in the past. However, at a time much closer to the
time of his use of cocaine, the November 1987 PSI, the Individual denied cocaine use.
Consequently, I find that the Individual, during the November 1987 PSI, deliberately provided a
false answer regarding his past cocaine use during the November 1987 PSI and did not formally
reveal his prior use until the May 2013 PSI. See Tr. at 188.
As for the misrepresentations in the August 2003 and February 2004 QNSPs, I find that they
were not a product of the Individual’s addiction to prescription narcotics and alcohol
- 11 -
dependence. In this regard, the only definitive evidence as to the beginning of Individual’s
condition is found in the 2006 Treatment Facility records that indicate that the Individual was
diagnosed as suffering from prescription opioid dependence. Additionally, I am not convinced
that his answers resulted from misunderstanding the question. My review of the printed question
reveals that each of the employment positions specified in Question 24(d) are set apart with a
semi-colon – thus indicating that the question asked if he had used illegal drugs while holding
certain positions or while holding a security clearance. Given this, the Individual’s interpretation
that the question asked if he used illegal drugs while employed as a law enforcement officer,
prosecutor, or courtroom official while possessing a security clearance and while in a position
directly and immediately affecting the public safety seems implausible. Further, the Individual’s
then recent history of falsification weighs heavily against finding the Individual’s explanation
credible.
In reviewing the evidence before me, I find that the Individual has engaged in a lengthy pattern of
deceiving LSO officials as to the extent of his drug use. The Individual failed to reveal completely
the extent of his use of illegal and prescription narcotic drugs for a period of approximately 26 years
(extending from the November 1987 PSI through the May 2013 PSI). Further, I cannot find that the
Individual’s cooperation in providing accurate answers during the November 2006 and May 2013
PSIs constitute a voluntary admission of his past falsehoods. See Personnel Security Hearing, Case
No. TSO-0677 (2008), slip op. at 6. A significant number of the falsifications I believe were made in
an attempt to avoid the consequences of his actions and were not the product of his dependence on
prescription narcotics. See Tr. at 188. Additionally, the Individual did not seek on his own initiative
to remedy his falsifications. I find that these factors outweigh any mitigation provided by the
Individual’s recent rehabilitation from prescription narcotic use or the individual age of some of the
falsifications. See Adjudicative Guidelines, Guideline E ¶ 17 (c), (d) (mitigating factors for age of
falsification and counselling). Consequently, I conclude that the Individual, at this time, has failed to
resolve all of the Criterion F concerns raised by the information contained in the Notification Letter.
V. CONCLUSION
While I find that the Individual has resolved the Criterion K concerns at issue in this case, I must
also find that the Individual has not resolved the DOE’s security concerns under Criterion F.
Therefore, the Individual has not demonstrated that restoring his access authorization would not
endanger the common defense and would be clearly consistent with the national interest.
According, I find that the DOE should not restore the Individual’s access authorization. Review
of this decision by an Appeal Panel is available under the procedures set forth at
10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: January 10, 2014
- 12 -